In city after city and for national group after national group, newly available data from the Executive Office for Immigration Review (EOIR) document extensive hard-to-explain disparities in how the nation's immigration judges decide the thousands requests for asylum that come before them each year, according to an analysis by the Transactional Records Access Clearinghouse (TRAC).

The unusual persistence of these disparities — no matter how the asylum cases are examined — indicates that the identity of the judge who handles a particular matter often is more important than the underlying facts. Because equal justice under the law is a fundamental goal of American jurisprudence, the new findings about the day-to-day operations of the immigration courts are disturbing.

Table 1Judge-by-JudgeAsylum DecisionsFY 2001-2006

The current report builds on TRAC's previous study that used more limited data of the immigration courts. On the basis of additional information, the new report offers a detailed analysis of the judge-by-judge disparity that exists in each of the nation's separate immigration courts — from New York to Miami, from Los Angeles to Boston, and from Chicago to Houston. Also analyzed are the disparity rates for asylum seekers from different nations — China, Haiti, Colombia and others.

The data obtained by TRAC cover 425,528 asylum decisions made in the courts during the last quarter of a century. This report, however, focuses on the work of 224 immigration judges, each of whom had decided 100 or more asylum matters from FY 2001 to 2006 where the applicants were represented by counsel.

(On the basis of TRAC's previous report the EOIR initiated a special project to track disparity in asylum matters. But because the period covered by the current report ended shortly after the initiation of the court's new effort, information about the possible impact of the monitoring project is not yet available.)

Disparity Within Immigration Courts

As currently organized there are Immigration Courts based in 52 cities around the country. The bulk of the asylum cases, however, are handled in a much smaller number of these courts. From FY 2001 to 2006, for example, the Immigration Courts in New York City and Miami decided more than four out of ten (42 percent) of all asylum matters. And the four busiest courts — with Los Angeles and San Francisco added — accounted for slightly more than six out of every ten asylum decisions.

Table 2Court-by-CourtDisparity inAsylum Decisions

For geographic and other reasons, the general mix of asylum requests varies from court to court. For example, some have a larger proportion of applicants from one nation than another, others have larger numbers of asylum seekers in custody, or differ on a multitude of other characteristics. Within each court, however, the Executive Office for Immigration Review has automated procedures to assign the incoming requests on a random basis. Therefore, the individual judges within a given district are thought to be dealing with the same broad mix of asylum seekers as their colleagues sitting in the same court. As a result — in each immigration court — the average grant and denial rate for the judges deciding asylum matters should be roughly similar.

This report examines how the record of each immigration court handling asylum matters measures up to this expectation. Table 1 presents the judge-by-judge asylum denial rates within each immigration court along with the number of asylum cases decided during the past six years. Every judge in the country who decided at least 100 asylum cases (where the applicant was represented by counsel) in a particular court is included on the list. Table 2 summarizes this information court-by-court. The summary includes the highest and lowest denial rates of judges serving on that court, and the difference or range between these two extremes.

Note: In comparing asylum denial rates among judges on each Immigration Court, differences were generally found to be highly "statistically significant." This means that the natural variation in the specific circumstances presented in asylum requests does not account for the judge-to-judge disparity in decisions where cases are assigned at random among judges in a city. These statistical test results are also included on Table 1.

Since the majority of asylum cases are decided in only four courts our analysis begins with these.

New York. The variation among the decisions of New York's immigration judges is quite extreme. Of the 36 such judges, two denied asylum requests less than 10% of the time and another denied requests more than 90% of the time. See Figure 1.

Those with the largest proportion of denials included Judge William F. Jankun. He turned down 91.6% of the 665 requests that he considered. Then there was Judge Sandy K. Hom who declined 89.7% of 1,533 matters and Judge John Opaciuch who rejected 87.5% of 879 requests.

At the other end of the scale in New York were three judges who presumably had dealt with broadly similar kinds of applicants. Among them was Judge Terry A. Bain who only denied 9.5% of her 1,946 cases. Then there was Judge Margaret McManus who denied 9.9% of the 1,859 cases she heard. And William P. Vanwyke — with 1,181 cases — and a denial rate of 14.7%.

Miami. With 26 judges who had handled more than 100 cases, Miami was the second busiest in the nation in terms of asylum matters decided. In that city, Judge Sandra A. Coleman's denial rate was 21.8% while Judge Mahlon Hanson's rate was 97.6%. How the judges ranged between the low and the high points is displayed in Figure 2. Again the denial rates for each of these 26 judges are found in Table 1. Setting aside the two judges with the lowest denial rates, the remaining 24 Miami judges' asylum denial rates still varied between 63% and 98%.

Los Angeles. This city had 31 judges, more than Miami, but the judges decided substantially fewer requests for asylum. Figure 3 displays how judge-to-judge asylum denial rates varied in that court. Again we see considerable variability. Judge Stephen L. Sholomson had the lowest declination rate — 27.1% — while Judge Christine A. Bither in the same district had the highest — 86.7%. See Figure 3.

San Francisco. Of the four most active cities, San Francisco was the smallest with 23 judges who decided 100 or more asylum matters. Figure 4 displays how asylum denial rates varied from judge to judge in that court. Judge Anthony Murry had the highest denial rate — 86.7% while at the other extreme, Judge Miriam Hayword only denied asylum requests 26.5% of the time. Again the specific denial rate for each of the San Francisco's judges is listed earlier in Table 1.

Other Cities: While these four cities handled the majority of asylum cases, there were 14 additional cities that each had four or more judges who had individually decided 100 or more asylum cases during the past six years. See Table 2. Again in most courts there are large judge-to-judge variations within the same city in how asylum cases were decided. For example, the immigration court in Arlington, Va., had seven judges who had decided more than 100 asylum cases each. The denial rate ranged from 34% (Judge Paul W. Schmidt) to 77% (Judge Joan V. Churchill). This court is of special interest because its judges sit in the same city where the Executive Office for Immigration Review (EOIR) — the administrative body that manages all of these special courts — is located. But Arlington was typical of courts in many cities. In fact, in Philadelphia, the judge-to-judge differences were even higher — from 19% (Judge William Van Wyke) to 89% (Judge Donald V. Ferlise).

While a great deal of judge-to-judge disparity was found within the immigration courts of these cities, there were exceptions. Most conspicuous was the high degree of similarity found in the denial rates in Atlanta. Here the four judges sitting in that court who handled at least 100 asylum cases showed strong consistency in their grant and denial rates. Decisions by Judge William A. Cassidy, Judge Wayne K. Houser, Jr., Judge G. MacKenzie Rast, and Judge Paul L. Johnston were all within 3 percentage points of one another. This was the only court in the country which met the standard of having roughly similar asylum grant and denial rates. The next smallest range in asylum denial rates was Houston. Here, however, range was from 60% to 79%.

Hearing Location. In addition to a main location, some courts hold hearings at additional locations. To provide a further check to see if any of this judge-to-judge variation might be due to differences in judges' workloads among locations, a second analysis was conducted to see judge-by-judge asylum decisions at just the main hearing location. Wide variation in asylum denial rates persisted. See Table 3.

Type of asylum requests and custody status. Asylum applications can be filed affirmatively or defensively. See earlier TRAC report on the asylum process. Wide judge-to-judge differences in denial rates were found for affirmative as well as defensive asylum applicants within the different immigration courts. See Table 4.

TRAC also examined the case-by-case records to see whether the applicant was in custody when asylum was requested, had been in custody but was released, or had never been in custody. As shown in Table 5, wide judge-by-judge disparities again were found within each of these custody classes.

The data show that from FY 2001 to 2006 a total of 184,907 individuals from over 200 nations who had sought asylum in the United States had their cases decided. The 39,891 applicants from China — 22% of the total — made up the largest single national group. Ranking second and third in terms of requests for asylum were the 18,823 from Colombia who made up slightly more than 10% of all asylum seekers and the 18,266 Haitians, also with 10 percent. The 1,933 applicants from Iraq made up only 1.5% of the total. Figure 5 compares the volume of cases decided for the top 25 asylum seeking nations.

The data further show that the proportion of applicants from different countries who are granted asylum varies greatly. The reasons for these national differences are not fully understood, but the various legal requirements are certainly a factor. For the nation as a whole, for example, 50% of the applicants from China between 2001 and 2006 were granted asylum. By comparison, only 17% of those fleeing Haiti and 34% from Colombia were successful. See Table 6

Table 6Asylum Denial Ratesby NationalityFY 2001 - 2006

But the data show that even for an individual nationality, wide judge-by-judge decision disparities exist when the asylum requests are examined within an individual immigration court. Statistical tests ruled out the likelihood that these differences were from chance variation. For this analysis, cases decided by each immigration judge were divided by the country of origin of the asylum seeker, and denial rates by judge for each nationality were computed. Again, only judges who had decided at least 100 cases for a given nationality where the asylum seeker was represented by counsel are shown. See Table 7.

Table 7Court-by-Court Disparityin Asylum Decisionsby Nationality

China. Nationally the judge-to-judge differences in asylum rates for Chinese applicants range from a denial rate of 7% up to a denial rate of 95%. This national judge-to-judge variability is shown in Figure 6. The record further shows that most of these requests were decided by the immigration judges in New York and that the disparities there mirror the national figures.

The data, however, also show considerable differences for individuals from China in most other cities. The asylum denial rate for judges in Los Angeles, for example, varied from 17% to 91% while in Newark it ranged from 17% to 72%. The variation in Chicago, where there were only three judges who had a sufficient number of cases to be compared, was far less, ranging between 67% and 78%.

Haiti. Nationally, judge-to-judge denial rates for Haitians ranged between 16% to 99%. See Table 7 and Figure 7. Only in Miami and Orlando were there sufficient numbers of cases decided from Haitian asylum applicants to reliably compare judge decisions. In Miami, depending upon the judge an asylum applicant was assigned to, the denial rate was as low as 33% or as high as 99%. In Orlando, even with just 4 judges, the decisions range from a denial rate of 16% up to a denial rate of 89%.

Colombia. Judge-to-judge asylum denial rates for Colombians were as low as 2% and as high as 96%. See Table 7 and Figure 8. Again, only in Miami and Orlando were there enough cases to reliably examine inter-judge disparity in decisions. The 22 judges in Miami ranged from a denial rate of 16% to a high of 97%. In Orlando, with just four judges that had a sufficient number of Colombian cases, the denial rate was as low as 2% and as high as 45%.

Other nationalities. The disparity in decisions for asylum seekers from seven additional nations are also shown in Table 7. These countries are Albania, India, Indonesia, Ethiopia, Cameroon, Armenia and Iraq. No other nationality had a sufficient number of judges who had decided 100 or more cases to be compared. And for these 7 additional nationalities, in only one was there more than one court in which disparity could be examined. In general, however, substantial judge-to-judge differences in denial rates are observed for each of these additional nationalities. The smallest range was found for the Philadelphia Immigration Court for Indonesian asylum seekers. Here the range for four judges was 83% to 98%.

Conclusion

The wide range of disparities in how asylum matters are decided — regardless of the perspective from which they are examined – points strongly to a dysfunctional system where the law is not the law. As TRAC previously documented, these disparities have existed for many years and have outlived the tenure of any number of individual judges. This strongly suggests that when it comes to decision disparity, individual judges do not appear to be the primary source of the problem. An attempt to deal with this failure by focusing only on individual judges — even those judges whose asylum decisions fall at either extreme — will in the long run do little to guarantee a fairer and more effective system without wider systemic reforms.